The Communications Decency Act 

Defenses Under the CDA

It was the goal of Congress to create an incentive for service providers and content providers to block childrens access to offensive content. Congress created a series of defenses to liability that created these incentives. Compare these defenses to those under COPA and the DMCA.

Access Provider Defense

The CDA provided a defense for service providers solely providing access to materials not under their control. [47 U.S.C. § 223(e)(1)]. Acme ISP, for example, would not be liable for providing to a minor Internet connectivity that ultimately provided access to the Playdude Magazine website. Simply carrying bits was insufficient for liability.

Good Faith Defenses

The CDA also created a series of affirmative actions that could be taken to shield a site from liability. [Sec. 223(e)(5)] If the content providers took measures to protect children from the content, the providers could be immune from prosecution under the CDA. These measures would have to be "[1] reasonable, [2] effective, and [3] appropriate" efforts to restrict the access of minors. Delineated examples in the CDA include restricting access to content through use of PINS, passwords, or credit card numbers. [47 U.S.C. § 223(e)(5)]. If a purveyor of pornography followed these measures, the purveyor could not be prosecuted under the CDA.

Good Faith Defense Against Other Liability

Congress wanted to encourage companies that sought to create safe spaces for children. However, at the time of the drafting of the CDA, one court had punished a service provider for exactly such behavior. In the case Stratton-Oakmont, Inc. v. Prodigy, Prodigy sought to create a safe place for children in chat rooms by providing monitors who had the ability to control whether content got posted. Prodigy advertised this kid-friendly service. Stratton-Oakmont was an investment firm confronting difficult times. An unknown individual, displeased with Stratton Oakmont, posted to a Prodigy chat room disfavorable information about Stratton Oakmont. Unable to determine the author of the content, Stratton Oakmont sued Prodigy. The lower court looked at Prodigy's efforts to create child safe spaces, determined that this was editorial behavior and that Prodigy was therefore acting in the role of a publisher. As a publisher, Prodigy could be liable for the content of a third party.

This did not stand well with Congress. As a part of the CDA, Congress included a defense declaring that computer networks are not republishers of data transmitted over their networks. In other words, online services are not liable for third party content over which their exert no control. [47 U.S.C. § 230(c)(1)] See Good Samaritan Defense . Furthermore, affirmative efforts to restrict access of minors to offensive material shall not subject an online service to civil or other liability. [47 U.S.C. § 223(f)(1)].

These federal defenses remain and have created an important shield for Internet network to liability for third party content. These defenses, however, may have provided service providers with unintended protection. Where ISPs seek to create kid friendly spaces, they may be immune from liability regardless of the inappropriateness of its actions. Where, for example, a service provider violates the privacy rights of a user, the service provider could arguably be protected from liability where the act was for the purpose of restricting the access of minors to offensive material.

Vicarious Liability Defense

The third defense, § 223(e)(4) removed some of the risk of vicarious liability to employers for activities of their employees.

The Hyde Amendment

In the midst of the final debate over the CDA, Congressman Hyde slipped a surprise. Entitled "Clarification of Current Laws Regarding Communication of Obscene Materials Through the Use of Computers," it would have expanded the reach of the federal obscenity laws to cover "interactive computer services." [18 U.S.C. § 1462] [18 U.S.C. § 1465]. This subsequently received a whirlwind of attention because, according to 18 U.S.C. § 1462(c), it would have been illegal to transmit material online about abortion. This provision was so clearly unconstitutional that the Department of Justice declined to defend it in Court. [Hyde]